An Election Day Soundtrack

Trademark Law

(Note: this post is best read with some background music.)

During my freshman year of college, I decided to run for just about every student government position for which I was eligible. My campaigning methods – unbeknownst to me at the time – could have raised some intellectual property considerations, particularly in the world of trademark law. For one thing, my campaign posters featured the Yuengling Lager logo, which I had poorly altered to depict my own last name. (Side note: Using beer imagery to appeal to college voters is every bit as effective – albeit unimaginative – as one might think). In addition to my posters, I also included a clip of Tom Petty’s song “I Won’t Back Down” as background music for a short campaign video I posted online.

The use of songs by political candidates in their campaigns is cause for much controversy. The upcoming presidential elections have seen no shortage of recording artists opposing the use of their songs by candidates whom they do not wish to endorse. Steven Tyler recently spoke out against Donald Trump’s use of Aerosmith’s “Dream On” at campaign events. Rock band R.E.M. also had some choice words for Trump after he used their song “It’s the End of the World As We Know It” (incidentally one of my all-time favorite songs) during a rally concerning U.S. relations with Iran. Mike Huckabee angered the band Survivor when he appeared onstage with same-sex marriage opponent Kim Davis while “Eye of the Tiger” played in the background.

In 2009, the U.S. District Court for the Central District of California heard arguments on a motion to dismiss a claim by Jackson Browne against Senator John McCain. Browne opposed McCain’s use of his song “Running on Empty” in a campaign commercial attacking Barack Obama. The claim was for false association or endorsement under the Lanham Act (the primary source of federal trademark law). The court refused to dismiss the claim against McCain, reasoning that the Lanham Act indeed applies to noncommercial political speech and recognizing that McCain had failed to establish that there would be no likelihood of confusion as to endorsement by Browne. Because the issue before the district court was a motion to dismiss, the court did not need to answer other questions that would likely need to be answered in a case decided on the merits – chief among these being the question of whether a song may even receive protection as a registered trademark.

The McCain case eventually settled and, to the best of my knowledge, no court has made any definitive ruling as to the viability of these types of false endorsement claims. Perhaps eventually the law will become more settled as to whether recording artists may assert successful false endorsement claims against politicians. Until that time, artists may alternatively rely on copyright claims – but only if the song in question was not properly licensed. Additionally, popular recording artists can take comfort in using their considerable visibility to set the record straight as to which candidates they do or do not endorse.

Oh, and Tom Petty, if you’re reading this – thanks for the campaign help!

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A Blog By Any Other Name

Copyright Law

I felt it would be appropriate for my first post to explain the title of my blog and what I hope to accomplish through my posts.

The phrase “a modicum of creativity” originates in United States copyright law. In the 1991 Supreme Court case of Feist Publications v. Rural Telephone Service (499 U.S. 340), Justice O’Connor delivers the opinion of the Court in a copyright dispute over telephone directory listings. The Feist case required the Court to consider whether the telephone directory listings at issue were copyrightable – either independently or in the way in which they were arranged.

Feist illustrates one of the few hurdles that a work seeking copyright protection must pass – the requirement of originality. A phrase often heard in copyright law is “the sine qua non [essential ingredient] of copyright is originality”. Originality is a requirement mandated by the Copyright Clause of the U.S. Constitution. Justice O’Connor in Feist cites to the 1879 “Trade-Mark Cases” for the proposition that originality in copyright requires independent creation plus a modicum of creativity.

I find this to be both a delightful phrase and concept. By requiring only a modicum of creativity, copyright law sets a low threshold for protection. The requirement saves authors from having their expressive works judged by courts to determine if they are creative enough to warrant protection.

A work needs only a modicum – a scintilla, speck, dash, iota, scrap, morsel – of creativity. I hope that by writing this blog, I can add a slight spark of creativity to the areas of law I find so interesting. Intellectual property law appeals to me because it protects and promotes a wide range of creation – be it art, music, literature, or novel inventions. I don’t just find creativity to be entertaining – I believe it’s important. I am writing this blog mostly for my own purposes. I feel that by forcing myself to research, contemplate, and write about topics in intellectual property law I will become a better advocate for those issues I believe in.